TPIMs in 2014 (March 2015)

Both my annual report on the operation of the Terrorist Prevention and Investigation Measures (TPIMs) Act 2011 and the Government’s response¬†were laid before Parliament and published on 12 March 2015.¬† They are summarised here.

TPIMs report

TPIMs – the less onerous successors to control orders – “withered on the vine” during 2014, with only a single TPIM intermittently in force.¬† That is in itself no cause for regret: as demonstrated by the November 2014 judgment in DD v Secretary of State for the Home Department [2014] EWHC 3820 (Admin), which is freely available on the bailii website, TPIMs are intrusive measures which need to be reserved for the exceptional cases in which a credible terrorist threat cannot be dealt with by prosecution of deportation.

But TPIMs can be very useful in an appropriate case: they can disrupt the associations of dangerous terrorists, as well as reducing the cost of keeping an eye on them (e.g. by tagging and the use of curfews).¬† Confidence in the regime was jeopardised by two high-profile absconds in 2012 and 2013.¬† If the regime is to be retained, it is important therefore that it is fit for purpose.

With this in mind, I made 10 recommendations for improvement in my Report of March 2014.¬† With minor reservations, all 10 of those recommendations have been accepted by the Government, and those requiring¬†statutory change¬†have been given effect in the Counter-Terrorism and Security Act 2015.

Key recent changes to the TPIM regime include:

A reduction in the scope of “terrorism-related activity”, to ensure that only those who are closely related¬†to acts of terrorism¬†may be subject to TPIMs

A requirement that the Home Secretary be satisfied of involvement in terrorism on the balance of probabilities before she can impose a TPIM

The ability to require TPIM subjects to attend meetings with a view to deradicalisation

The restoration of a relocation power, under which TPIM subjects – with their family if they so choose – can be required to live up to 200 miles from their home and local associates.

The formation of a working group, chaired by a High Court judge and tasked with identifying recommendations that could improve the fairness of TPIM proceedings.

My report¬†concludes:

“I believe that TPIMs Mk II should be fairer and more serviceable than either the control order regime in force from 2005-2011,¬† or TPIMs Mk I.¬† That proposition will be tested in the years ahead.¬† In any event, I hope nobody will lose sight of the fact that these exceptionally intrusive measures, though a powerful weapon against the undoubted threat of terrorism, are also a last resort.”

TPIMs – Government response

In its response, the Government notes¬†that it has¬†accepted most of my recommendations and reflects upon two that it did not:

the proposal that the¬†Home Secretary should be¬†required on review to persuade¬†a court¬†on the balance of probabilities that a TPIM subject was involved in terrrorism, and

a statutory bar to the use as evidence of information given during compulsory deradicalisation interviews (appointment measures).

On the first of those points, the Government notes that the court will¬†ask whether the Home Secretary has acted reasonable and proportionately¬†– though it adds, intriguingly, that “Both the Home Secretary‚Äôs decision to impose a TPIM notice and the review by the court will be considered on the balance of probabilities that the individual is or has been involved in terrorism-related activity.”

On the second, the Government¬†considers that the existing power of the criminal courts¬†to exclude evidence where to admit it would have an adverse effect on the fairness of proceedings is a “sufficient safeguard” to ensure that information obtained in these meetings cannot be unfairly used against the individual.¬† This recalls the¬†Government’s failure to adopt the recommendation of the Divisional Court in Beghal (echoed in my July 2014 report) that there should be a statutory bar on the use of evidence given under compulsion in the course of an interview under Schedule 7 to the¬† Terrorism Act¬†(port powers).¬† More positively, the Home Secretary undertakes to “consider on a case by case basis whether appropriate assurances can be provided about how information obtained through the appointments measure will be used”.

To view a document in Adobe PDF format, you may first need to download a free copy of the
Adobe Acrobat reader (opens in new window)

I am grateful for this opportunity to discuss my work, and my Annual Report published last week. I am also hoping to be accompanied by some who met me at community round tables held by Forward Thinking last year. https://t.co/notXy9h1s7,Jan 29